District Courts Uphold Probate Court Dismissals of Untimely Filed Claims.

Creditors of estates typically must file a claim against a probate estate within three months of receiving notice that the decedent had died and a probate estate has been opened.  Otherwise, the creditor (or anyone else seeking a claim against an estate) is generally limited to two years following the decedent’s date of death to seek recovery of money from a probate estate.  These principals have been codified by the Florida legislature in the Probate Code.

The two leading cases interpreting these sections of the Probate Code are Comerica Bank & Trust, FSB v. SDI Operating Partners, LP, 673 So.2d 163 (Fla.4^th DCA 1996) and  May v. Illinois Nat. Ins. Co. 771 So.2d 1143 (Fla. 1999).  Comerica involved an action arising from alleged environmental pollution of land once owned by the Decedent.  The current owner of the polluted land filed an action in a Michigan court against the Decedent more than a year after the decedent’s death (the date of death was June 20, 1992) seeking money damages and other relief.  Id. at 164.  Later, the land owner assigned to SDI all of its causes of action against the other defendants, including the lawsuit against Decedent.  Id.   

On September 27, 1994 more than two years after the Decedent’s death, SDI filed a petition to enlarge the time for filing a claim in the Decedent’s probate estate, which the probate court granted over the Personal Representative’s objection that section 733.710 of the Florida Probate Code unavoidably barred the claim as untimely.  (more…)

How do I find out what assets are in a probate estate?

With increasing frequency in Florida, friend and relatives of a loved one are left wondering what happened to the estate that they knew existed prior to death but apparently disappeared after the probate estate is opened and the last will and testament is admitted to probate.   Often, the source of the confusion is communication between the family members and the decedent prior to death concerning an understanding of the content and value of the estate.

But what can you do when the loved one dies, a will is admitted to probate, and the friends and relatives who thought they were beneficiaries never hear a word or receive any notice or information regarding the assets of the estate and the particulars from the attorney administering the estate?  (more…)

In Florida, can a spouse be disinherited?

Several years ago, the Florida Legislature enacted HB 301 effective October 1, 1999, for decedents dying on or after October 1, 2001 (known as the elective share statute). This law changed a long-standing rule that spouses could be disinherited. Florida courts now repeatedly interpret and apply the new elective share statute in a manner consistent with the recognized strong public policy favoring protection of the surviving spouse against being disinherited.

The question often arises as to whether assets placed by a decedent into an irrevocable trust are subject to a claim by the surviving spouse under the new elective share statute. The answer depends on the specific facts of each case and on a court’s understanding of what assets constitute the decedent’s “probate estate.” First, one must analyze the definitions written into law by our elected officials in Tallahassee and Washington. (more…)

Client:   What happened at court?

Lawyer:   Justice Prevailed.

Client:   Appeal Immediately!

Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.

The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a Florida probate court.  Initially, the trust and estate lawyer will examine the probate order in the context of Rule of Appellate Procedure 9.110(a) (2), which provides that the review of an order by the appellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.” This rule operates to broaden the scope of “finality” as that concept generally applies in civil matters.  However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. Where the rights of the parties as relates to their interest in the probate estate are not finally determined, then the orders are not deemed final for purposes of appeal.  (more…)